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We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Argument preview: What is “cocaine base”?

Posted Fri, February 25th, 2011 6:21 pm by James Bickford

The Controlled Substances Act, 21 U.S.C. § 841(b)(1), distinguishes between "coca leaves," "cocaine, [and] its salts" on the one hand, and "cocaine base" on the other. As originally passed in 1986, the Act mandated the same minimum ten-year sentence for offenses involving either fifty grams of cocaine base or five kilograms of cocaine in other forms. (It was recently amended to raise the trigger to 280 grams of cocaine base.) On Monday the Court will hear argument in DePierre v. United States (No. 09-1533), which presents the narrow statutory question of just what Congress meant by "cocaine base." Six circuits have held that this language encompasses all chemically basic forms of processed cocaine, while four have ruled that it refers only to crack cocaine.

In its natural form, cocaine is a molecule found in the coca leaf. The parties disagree as to the chemical nature of that molecule but, when it is extracted from coca leaves to make coca paste, the result is by all accounts a base. Coca paste is then combined with an acid to produce cocaine hydrochloride"”commonly known as powder cocaine"”which is a salt, not a base. Powder cocaine can be converted into crack or freebase, both of which are bases. The relevant molecule in coca paste, crack, and freebase is identical; only powder cocaine (and, perhaps, coca leaves) is chemically distinct. There are also differences in consumption. Coca leaves are generally chewed, while crack, coca paste, and freebase can all be smoked. Powder cocaine decomposes at relatively low temperatures and is therefore unsuitable for smoking.

Frantz DePierre sold drugs to a government informant on two occasions. The first sale involved powder cocaine; the second occurred after the informant asked for crack and DePierre confirmed that he could provide it. At trial, DePierre asked that the jury be instructed to determine whether he had in fact sold crack cocaine to the informant. Instead, the district court ruled that "the question is cocaine base; that is, the nonhydrochloride form of cocaine, which may or may not manifest itself in some something that's been identified as crack cocaine" and instructed the jury that "[c]rack cocaine is a form of cocaine base, so you'll tell us whether or not what was involved is cocaine base." DePierre was convicted of selling at least fifty grams of cocaine base, and he received the mandatory minimum sentence of ten years' imprisonment. He appealed on a variety of grounds, including the allegedly overbroad jury instruction. As relevant here, the First Circuit ruled that "the district court's instructions and the jury verdict accorded with our precedent, and the mandatory minimum sentence was properly imposed."

DePierre filed a petition for certiorari, which the United States opposed. It argued that the First Circuit's holding was correct; moreover, DePierre had implicitly conceded at trial that he sold crack cocaine and so, the government contended, would not have his sentence altered even if he prevailed on the question of statutory construction. The Court granted certiorari on October 12, 2010.

In his brief on the merits, DePierre argues that the statutory provision in question was enacted in response to congressional concern with crack cocaine. Because crack was a relatively new drug at the time, he argues, it was known by a variety of names"”including "base""”and Congress simply selected one of those colloquial terms. (Earlier proposals had distinguished "cocaine freebase""”which, according to DePierre, is another synonym for crack"”from ordinary "cocaine.") The legislative history, DePierre contends, also demonstrates Congress's intent to combat crack usage. He goes on to suggest that by allowing the U.S. Sentencing Commission's decision to interpret "cocaine base" as "crack" for the purposes of the Sentencing Guidelines to take effect, Congress implicitly approved of its interpretation. He argues that interpreting "cocaine base" as a scientific term that excludes only powder cocaine and other salts, rather than as a colloquial synonym for crack, would lead to absurd results, because all processed non-powder cocaine is basic and coca leaves also contain cocaine in its basic form. Thus, on DePierre's reading, all "cocaine" (which the statute distinguishes from "[cocaine] salts") and "coca leaves""”statutory terms which trigger a ten-year sentence only when five kilograms are sold"”are also, chemically, "cocaine base," and therefore rendered superfluous in the statutory scheme. DePierre also cites the rule of lenity to argue that because the meaning of "cocaine base" is at least ambiguous, the term should be read narrowly.

The United States counters that "cocaine base" refers to "the chemically basic form of cocaine, which is readily identifiable using standard techniques of chemical analysis," and is not a synonym for "crack." The government suggests that this is the plain meaning of the term, a reading which it characterizes as being in accord with the Controlled Substances Act's consistent approach of identifying substances by chemical and botanical terminology rather than using street names. The government acknowledges that the emergence of crack cocaine was a significant congressional concern when the Act was passed, but it argues that other smokeable, chemically identical forms of cocaine were also a concern. DePierre's reading, it contends, would raise difficult questions of how to distinguish "crack" other forms of smokeable cocaine and would moreover encourage drug traffickers to produce those other forms and thereby lower their risk of lengthy imprisonment. The government contests DePierre's claim that its own reading would render statutory language superfluous or lead to absurd results, rejecting the assertion that coca leaves contain "cocaine base" and accepting that all cocaine apart from coca leaves and powder cocaine is encompassed within that term The government concludes by arguing that the Sentencing Commission's definition of "cocaine base" applies only to sentencing under the Guidelines and has no role in this statutory question, and moreover that any statutory ambiguity is not so grievous as to justify a resort to the rule of lenity.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]